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Absolute Activist Value Master Fund Ltd. v. Devine

United States District Court, M.D. Florida, Fort Myers Division

September 23, 2019

ABSOLUTE ACTIVIST VALUE MASTER FUND LIMITED, ABSOLUTE EAST WEST FUND LIMITED, ABSOLUTE EAST WEST MASTER FUND LIMITED, ABSOLUTE EUROPEAN CATALYST FUND LIMITED, ABSOLUTE GERMANY FUND LIMITED, ABSOLUTE INDIA FUND LIMITED, ABSOLUTE OCTANE FUND LIMITED, ABSOLUTE OCTANE MASTER FUND LIMITED, and ABSOLUTE RETURN EUROPE FUND LIMITED, Plaintiffs,
v.
SUSAN ELAINE DEVINE, Defendant.

          OPINION AND ORDER

          JOHH E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on defendant's Motion for Reconsideration of Court's Opinion and Order Granting in Part and Denying in Part Her Motion for Award of Costs and Fees (Doc. #770) filed on August 29, 2019. Plaintiff filed a Memorandum in Opposition (Doc. #774) on September 12, 2019. Also before the Court is defendant’s Amended Motion for Leave to Submit Attorney Billing records for In Camera Review (Doc. #772) and plaintiffs’ Memorandum in Opposition (Doc. #774).

         On August 1, 2019, the Court issued an Opinion and Order (Doc. #761) granting in part and denying in part defendant’s Motion for Award of Costs and Fees. The Court granted taxable costs and some non-taxable expenses pursuant to Fed.R.Civ.P. 37(d), but no attorney fees. Under Rule 60(b),

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). Defendant appears to rely solely on Rule 60(b)(6), and the Court finds that (1) through (5) do not apply, except as to the one issue of ‘newly discovered evidence.’ “Federal courts grant relief under Rule 60(b)(6) only for extraordinary circumstances.” Frederick v. Kirby Tankships, Inc., 205 F.3d 1277, 1288 (11th Cir. 2000) (citation omitted). “Consequently, relief under Rule 60(b)(6) requires showing ‘extraordinary circumstances’ justifying the reopening of a final judgment.” Arthur v. Thomas, 739 F.3d 611, 628 (11th Cir. 2014) (citations and quotation marks omitted). “The courts have delineated three major grounds justifying reconsideration: (1) an intervening change in controlling law; (2) the availability of new evidence; (3) the need to correct clear error or prevent manifest injustice.” Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994). “It is well established in this circuit that ‘[a]dditional facts and arguments that should have been raised in the first instance are not appropriate grounds for a motion for reconsideration.’” Wallace v. Holder, 846 F.Supp.2d 1245, 1248 (N.D. Ala. 2012) (citation omitted). Court opinions are “not intended as mere first drafts, subject to revision and reconsideration at a litigant's pleasure.” Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988).

         Defendant argues that it would be manifestly unjust to deny her: (1) the attorney fees pursuant to Rule 37(d) attributable exclusively to plaintiffs’ failure to appear at the depositions; (2) an award pursuant to the Court’s inherent authority for the costs and attorneys’ fees; and (3) an award for damages against the $10, 000 TRO Bond.

         1. Attorney Fees under Rule 37(d)

         The Court found that defendant was entitled to fees and expenses as a sanction pursuant to Fed.R.Civ.P. 37(d) for the failure of plaintiff’s counsel to attend properly noticed depositions. The Court noted that “Defendant incurred costs in the amount of $28, 200.86 as a result of plaintiffs’ failure to attend the depositions. (Doc. #742, ¶ 28.)” (Doc. #761, p. 26.) However, defendant did not provide any redacted billing statements to support this specific amount, and Matthew D. Lee’s original Declaration instead offered “[t]o the extent that the Court wishes to examine Ms. Devine’s counsels’ unredacted billing records to verify that the sums cited herein are accurate, Ms. Devine will submit those records to the Court for in camera review.” (Doc. #714, p. 7 n.2.) As a result, the ...


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